“appeal court” means the Ontario Court (Provincial Division) or the Ontario Court (General Division), as the case may be, sitting as the appeal court under section 116 or 135 of the Act; (“tribunal d’appel”)

“civil rule” means a rule in the Rules of Civil Procedure (Regulation 194 of the Revised Regulations of Ontario,1990); (“règle civile”)

“criminal panel” means any panel of three judges assigned to hear appeals in the week in which a matter is referred to a criminal panel under these rules; (“formation pénale”)

“inmate appeal” means an appeal or a motion for leave to appeal by a person who at the time the notice of appeal or notice of motion for leave to appeal is given is in custody and is not represented by counsel; (“appel d’une personne détenue”)

“judge” means the Chief Justice of Ontario, the Associate Chief Justice of Ontario or a judge of the Court of Appeal; (“juge”)

“Registrar” means the Registrar of the Court of Appeal and includes a deputy, associate or assistant Registrar. (“greffier”) O. Reg. 721/94, s. 1 (1).

Application of rules

(2) These rules apply in respect of appeals under sections 131 and 139 of the Act. O. Reg. 721/94, s. 1 (2).

Matters not provided for

(3) Where matters are not provided for in these rules, the practice shall be determined by analogy to them. O. Reg. 721/94, s. 1 (3).

APPLICATION OF CIVIL RULES

2. (1) Except where otherwise provided by the Act, another statute or these rules, the Rules of Civil Procedure apply, where appropriate and with necessary modifications, to appeals under sections 131 and 139 of the Act. O. Reg. 721/94, s. 2 (1).

(c) where the appeal is as to sentence, the basis for the appeal. O. Reg. 721/94, s. 3 (8).

Motion record

(9) On a motion for leave to appeal, other than an inmate appeal, the moving party shall serve,

(a) a motion record containing, in consecutively numbered pages arranged in the following order,

(i) a table of contents describing each document,

(ii) a copy of the notice of motion,

(iii) a copy of the proposed notice of appeal,

(iv) a copy of the certificate or information,

(v) a copy of any reasons of the trial court and the appeal court if the reasons are not included in the transcript,

(vi) a copy of any report prepared under the authority of an order made during the course of the proceedings,

(vii) a copy of all affidavits used before the appeal court, and

(viii) a copy of any other material in the court file that is necessary for the hearing of the motion;

(b) relevant transcripts of evidence, if they are not included in the motion record. O. Reg. 721/94, s. 3 (9).

Filing

(10) On a motion for leave to appeal under subrule (9), the moving party shall file one copy of the motion record and transcripts, with proof of service, within 30 days after the filing of the notice of motion for leave to appeal. O. Reg. 721/94, s. 3 (10).

Responding party’s record

(11) On a motion for leave to appeal, the responding party may, where he or she is of the opinion that the moving party’s motion record is incomplete, serve a motion record containing, in consecutively numbered pages arranged in the following order,

(a) a table of contents describing each document; and

(b) a copy of any material to be used by the responding party. O. Reg. 721/94, s. 3 (11).

Filing

(12) The responding party shall file one copy of the motion record, with proof of service, within five days after service of the moving party’s motion record and transcripts. O. Reg. 721/94, s. 3 (12).

Tabs may be used

(13) Despite subrules (9) and (11), the parts of the motion record may be divided by numbered tabs provided that the pages within the tabs are consecutively numbered. O. Reg. 721/94, s. 3 (13).

Transmittal of inmate notice

(14) The Registrar shall transmit to the Attorney General a copy of a notice of motion for leave to appeal filed by an official of an institution referred to in clause (6) (a). O. Reg. 721/94, s. 3 (14).

Inmate motion and motion in writing

(15) A motion for leave to appeal in an inmate appeal or by another person who is not represented by counsel shall be dealt with in accordance with Rule 4. O. Reg. 721/94, s. 3 (15).

INMATE APPEALS/APPEALS IN WRITING BY UNREPRESENTED DEFENDANT—LEAVE TO APPEAL

Motion for leave to appeal in writing

4. (1) Where the moving party for leave to appeal is not represented by counsel, the moving party may present the case for leave to appeal and argument in writing, and the motion shall be dealt with in accordance with subrules (2) to (10). O. Reg. 721/94, s. 4 (1).

Motion to be dealt with expeditiously

(2) Where the moving party is in custody, the motion for leave to appeal shall be dealt with as expeditiously as possible. O. Reg. 721/94, s. 4 (2).

Filing of argument in inmate appeal

(3) In an inmate appeal the written argument shall be filed with the notice of motion or within 15 days of service of the notice of motion by delivering the argument to the senior official of the institution in which the moving party is in custody. O. Reg. 721/94, s. 4 (3).

Service and filing of material, unrepresented non-inmate

(4) Where the moving party is not in custody, the moving party shall serve and file the motion record, transcripts and all other material that would be required if the motion for leave to appeal were to be heard with oral argument, within 30 days after the filing of the notice of motion for leave to appeal, and shall file two copies of the written argument with the motion record. O. Reg. 721/94, s. 4 (4).

Motion to be considered by judge

(5) The motion for leave to appeal shall be considered by a judge. O. Reg. 721/94, s. 4 (5).

Submissions from respondent

(6) If the judge considers that the motion has sufficient merit to require argument from the prosecutor, the judge shall so endorse the file, whereupon the Registrar shall transmit to the prosecutor copies of the notice of motion and the written argument of the moving party, if not included in the notice of motion, together with notification that the submissions of the prosecutor in answer to the motion should be made in writing within seven days of the receipt of the material from the Registrar and that two copies of the submissions should be filed with the Registrar. O. Reg. 721/94, s. 4 (6).

Procedure on dismissal of motion

(7) If the judge considers that the motion for leave to appeal does not have sufficient merit to require argument from the prosecutor, the judge shall give written reasons for judgment dismissing the motion. O. Reg. 721/94, s. 4 (7).

Respondent’s submissions to moving party

(8) Where submissions have been required from the prosecutor, a copy of them shall be transmitted to the moving party together with a notification that he or she may make written submissions in reply within seven days of receiving the submissions of the prosecutor. O. Reg. 721/94, s. 4 (8).

Written reasons

(9) When the moving party’s submissions in reply have been received, or the time for submitting them has expired, the motion shall be referred for disposition to the judge, who shall give written reasons for judgment, to be dealt with as if the reasons were a reserved judgment. O. Reg. 721/94, s. 4 (9).

Time for service, extension

(10) Ifthe notice of motion in Form 2 is not served within the time limited by rule 3, the moving party shall set out in the appropriate place in Form 2 the grounds for seeking an extension of time. O. Reg. 721/94, s. 4 (10).

Oral hearing, inmate appeal

(11) Where the moving party is in custody and has given notice that he or she wishes to present the motion in person, the judge shall direct that the motion for leave to appeal be listed for hearing, and in that event may request the Attorney General to arrange for the attendance of the moving party at the hearing. O. Reg. 721/94, s. 4 (11).

NOTICE OF APPEAL

Time for service

5. (1) Where leave to appeal is granted, a notice of appeal shall be served in the manner provided in subrule 3 (6) within 10 days after the granting of leave. O. Reg. 721/94, s. 5 (1).

Manner of service

(2) Despite subrule (1), the notice of appeal may be served upon the solicitor of record in the manner provided for in rule 16.05 of the Rules of Civil Procedure. O. Reg. 721/94, s. 5 (2).

Notice of appeal in inmate appeal

(3) The notice of appeal in an inmate appeal shall be in Form 3. O. Reg. 721/94, s. 5 (3).

Notice of appeal in other appeals

(4) The notice of appeal in all other appeals shall be in Form 4. O. Reg. 721/94, s. 5 (4).

ORDER WITHOUT ATTENDANCE OF COUNSEL

6.Except for an application for release from custody under section 132 of the Act, any order provided for in these rules may be made with the consent in writing of the parties without the attendance of counsel. O. Reg. 721/94, r. 6.

EXTENSION OR ABRIDGMENT OF TIME

General powers of judge

7. (1) The time for a motion for leave to appeal and to appeal and for doing any other act in connection with an appeal for which a time is prescribed may be extended or abridged by a judge before or after the expiration of the time prescribed. O. Reg. 721/94, s. 7 (1).

Notice

(2) Except in an inmate appeal, notice of motion to extend or abridge time shall be given to the opposite party unless otherwise directed by a judge. O. Reg. 721/94, s. 7 (2).

Substituted service or dispensing with service

(3) Where, on motion without notice, it appears to a judge that reasonable efforts have been made without success to give or deliver a notice or document in the manner required by these rules or the Act, or that reasonable efforts would not be successful, the judge may make an order for substituted service of the notice or document in such manner as the judge directs or, where necessary in the interests of justice, may dispense with the giving or delivery of the notice or document upon such terms as the judge considers proper in the circumstances. O. Reg. 721/94, s. 7 (3).

Extension of time in inmate appeal

(4) An extension of time relating to an inmate appeal may be granted by a judge and the endorsement to that effect shall constitute an order extending the time. O. Reg. 721/94, s. 7 (4).

(5) In all cases where the motion for an extension of time in an inmate appeal is served six months or more after the time for serving the notice of motion for leave to appeal, and in any other case where the judge considers it appropriate, the Registrar shall give the respondent notice of the motion. O. Reg. 721/94, s. 7 (5).

(6) Within seven days of receiving notice of the motion, the prosecutor shall, if the motion is opposed, file a written response to the motion with the Registrar, and a copy of the response shall be forwarded by the Registrar to the moving party together with a notification that he or she may make written submissions in reply to the response of the prosecutor within seven days after receipt of the response. O. Reg. 721/94, s. 7 (6).

(7) If the judge to whom the motion is made under subrule (5), after reviewing the grounds upon which the moving party requests an extension of time and any submissions filed by the moving party or the prosecutor under subrule (6), is of the opinion that an extension of time should be refused, the judge shall give reasons in writing for the refusal. O. Reg. 721/94, s. 7 (7).

(8) The reasons given by the judge on the motion shall be sent to the moving party and, where the prosecutor has filed a response, to the prosecutor, and where the motion is granted the prosecutor and the moving party shall be notified by the Registrar. O. Reg. 721/94, s. 7 (8).

(2) The appellant shall, at the time the notice of appeal is filed with the Registrar, file a certificate of the court reporter stating that copies of transcripts required for the hearing of the appeal have been ordered or file an undertaking in Form 5 that any such transcripts will be filed within 30 days after the filing of the notice of appeal. O. Reg. 721/94, s. 8 (2).

Transcripts for the court

(3) Except where otherwise ordered, three copies of the transcript of evidence at the trial and of any evidence received under section 136 of the Act are required for the use of the court. O. Reg. 721/94, s. 8 (3).

Contents of transcript

(4) Unless otherwise ordered by a judge, or except as otherwise consented to by the respondent, there shall be omitted from the transcript,

(a) all final argument;

(b) all objections to the admissibility of evidence, except a notation that an objection was made and a brief summary of the nature of that objection and the position of counsel, but the trial judge’s ruling and reasons in respect of the objection shall be set out in full in the transcript. O. Reg. 721/94, s. 8 (4).

Order for inclusion of additional transcript

(5) A party obtaining an order for the inclusion in the transcript of any portion of the matter referred to in subrule (4) shall furnish the order to the court reporter within five days after the granting of the order, and furnish a copy of the order to the other parties together with confirmation that the order has been sent to the reporter. O. Reg. 721/94, s. 8 (5).

(a) where there was a plea of guilty at the opening of the trial before any evidence was taken, the transcript shall include the entire hearing before the court, including,

(i) the arraignment,

(ii) the statement of counsel for the prosecution,

(iii) any evidence,

(iv) any submissions of counsel for the prosecution and the defence,

(v) any statement by the defendant prior to the passing of sentence, and

(vi) the trial judge’s reasons for sentence;

(b) where the plea was not guilty and was followed by the adducing of evidence, the transcript shall include,

(i) the trial judge’s reasons for conviction,

(ii) the verdict,

(iii) any evidence called in respect of sentence,

(iv) any submissions of counsel for the prosecution and for the defence on sentence, and

(v) the trial judge’s reasons for sentence. O. Reg. 721/94, s. 8 (6).

Agreed statement of facts

(7) Where the plea was not guilty and was followed by the adducing of evidence, then within 30 days of receipt of the transcript referred to in clause (6) (b), counsel for the appellant and for the respondent shall make every effort to agree to a statement of facts which shall be included in the appeal book. O. Reg. 721/94, s. 8 (7).

(8) In the event of difficulty in settling the statement of facts, counsel for either party may, on notice, attend upon a judge for directions. O. Reg. 721/94, s. 8 (8).

Date of order and completion

(9) The transcript shall include a note of the date the transcript was ordered and the date the ordering party was notified that the transcript was completed. O. Reg. 721/94, s. 8 (9).

Completion not to be suspended

(10) After a transcript has been ordered, the completion of the transcript shall not be suspended or the order countermanded without an order of a judge or the Registrar, unless the appeal has been wholly abandoned and the court reporter notified in accordance with subrule 28 (3). O. Reg. 721/94, s. 8 (10).

Agreement respecting evidence

(11) Instead of complying with subrule (3), the parties may, within 30 days after service of the notice of appeal, make an agreement respecting the transcript required for the appeal and any such agreement shall be reduced to writing, be signed by the parties, be filed with the Registrar forthwith and form part of the contents of the appeal book under rule 12. O. Reg. 721/94, s. 8 (11).

Filing of transcript

(12) Where no transcript is required for the hearing of the appeal other than that filed in the court appealed from, the copies of the transcript shall be filed with the Registrar within 30 days of the filing of the notice of appeal and in all other cases the transcript shall be filed forthwith upon its completion. O. Reg. 721/94, s. 8 (12).

DISMISSAL FOR FAILURE TO COMPLY WITH RULE 8

Service of notice to cure default

9. (1) Where the appellant fails to comply with any of the provisions of rule 8, the Registrar may serve notice on the appellant and counsel for the appellant that the appeal may be placed before the Court of Appeal to be dismissed as an abandoned appeal unless the default is cured within 10 days after service of the notice. O. Reg. 721/94, s. 9 (1).

Service of notice that appeal to be dismissed as abandoned

(2) Where the appellant does not cure the default within 10 days after service of the notice, or within such longer period as a judge allows, the Registrar shall serve notice on the appellant and counsel for the appellant of the date on which the appeal will be placed before the Court of Appeal to be dealt with in accordance with subrule (1). O. Reg. 721/94, s. 9 (2).

Appellant to be served with copy of order dismissing appeal

(3) The Registrar shall serve the appellant with a copy of an order dismissing the appeal. O. Reg. 721/94, s. 9 (3).

Manner of service

(4) Unless a judge otherwise orders, service of a notice on the appellant and counsel under this rule shall be by prepaid registered mail to the addresses as set out in the notice of appeal or as filed with the Registrar. O. Reg. 721/94, s. 9 (4).

PROCESSING APPEALS

10.Where a notice of motion for leave to appeal has been filed, the Registrar shall transmit a copy of the motion to the registrar of the Ontario Court (General Division) or the court clerk of the Ontario Court (Provincial Division), as the case may be, for the county or district where the proceedings appealed from were held. O. Reg. 721/94, r. 10.

ORIGINAL PAPERS AND EXHIBITS

11.Upon receipt of a motion for leave to appeal, the registrar of the Ontario Court (General Division) or the court clerk of the Ontario Court (Provincial Division), as the case may be, shall transmit forthwith to the Registrar from the court from which the appeal is taken all the material forming the record, including all documents and exhibits capable of reproduction, unless it is otherwise ordered by a judge. O. Reg. 721/94, r. 11.

APPEAL BOOKS

Contents of appeal book

12. (1) Except in an inmate appeal, the appeal book shall contain, in consecutively numbered pages arranged in the following order, a copy of,

(a) a table of contents describing each document, including each exhibit, by its nature and date, and, in the case of an exhibit, identified by exhibit number or letter;

(b) the notice of appeal and any supplementary notice of appeal;

(c) the order granting leave to appeal, and any direction or order made with reference to the appeal;

(d) the information or certificate, including all endorsements;

(e) the formal order or decision appealed from, if any, as signed and entered;

(f) the reasons for judgment of the trial court, if not included in the transcript of the trial, together with a further typed or printed copy if the reasons are handwritten;

(g) the reasons for judgment of the appeal court together with a further typed or printed copy if the reasons are handwritten;

(h) any order for release from custody pending appeal and any other order suspending the operation of the sentence;

(i) all documentary exhibits filed at the trial arranged in order by date or, where there are documents having common characteristics, arranged in separate groups in order by date;

(j) all additional documentary exhibits and affidavits used on the hearing of the appeal in the appeal court;

(k) all maps, plans, photographs, drawings and charts that were before the trial judge and are capable of reproduction;

(l) the agreed statement of facts, if any;

(m) where there is an appeal as to sentence, the pre-sentence report, the record of the defendant and any exhibits filed on the sentencing proceedings;

(n) any notice of constitutional question served in accordance with section 109 of the Courts of Justice Act and proof of service of the notice upon the Attorney General of Ontario and the Attorney General of Canada; and

(o) a certificate in Form 61H of the Rules of Civil Procedure signed by the appellant’s solicitor, or on the solicitor’s behalf by someone specifically authorized to do so, stating that the contents of the appeal book are complete and legible. O. Reg. 721/94, s. 12 (1).

Material may be omitted from appeal book

(2) Despite subrule (1), with the consent of the respondent or as directed by a judge, some or all of the material referred to in clauses (1) (i) to (k) may be omitted from the appeal book. O. Reg. 721/94, s. 12 (2).

Form of appeal book

(3) The appeal book, other than an appeal book prepared by the Attorney General under rule 13 or subrule 23 (3), shall be bound front and back in buff cover stock, and the appeal book prepared by the Attorney General under rule 13 and subrule 23 (3) shall be bound front and back in grey cover stock. O. Reg. 721/94, s. 12 (3).

(4) Despite subrule (1), the parts of the appeal book may be divided by numbered tabs provided that the pages within the tabs are consecutively numbered. O. Reg. 721/94, s. 12 (4).

(5) The Registrar may refuse to accept an appeal book that does not comply with the rules or is not legible and, in that case, the appeal book shall not be filed without a direction from a judge. O. Reg. 721/94, s. 12 (5).

APPEAL BOOK FOR UNREPRESENTED APPELLANT

13.Wherethe appellant is not represented by counsel, the Registrar may require the Attorney General or counsel for the prosecutor to prepare the appeal book. O. Reg. 721/94, r. 13.

FACTUMS

Heading of factum

14. (1) Except in inmate appeals, all parties to an appeal and persons who have been granted the right to be heard shall deliver a factum, to be entitled and described on its cover as “Appellant’s Factum”, “Respondent’s Factum” or as the case may be. O. Reg. 721/94, s. 14 (1).

Factum to be signed and dated

(2) All factums shall be signed by counsel or on counsel’s behalf by someone specifically authorized to do so, or by the appellant or respondent if he or she has no counsel, and the signature shall be followed by the typed name of counsel, if any, and the date. O. Reg. 721/94, s. 14 (2).

(a) Part I, with the caption “Statement of the Case”, containing a statement identifying the appellant, the trial court and the appeal court, the nature of the charge or charges, the result in the trial court and in the appeal court, and whether the appeal is from conviction, conviction and sentence, acquittal or other disposition;

(b) Part II, with the caption “Summary of the Facts”, containing a concise summary of the facts relevant to the issues on the appeal, with such reference to the evidence by page and line as is necessary;

(c) Part III, with the caption “Issues and Law”, containing a statement of each issue raised, immediately followed by a concise statement of the law and authorities relating to that issue;

(d) Part IV, with the caption “Order Requested”, containing a statement of the order that the court will be asked to make;

(e) Schedule A, with the caption “Authorities to be Cited”, containing a list of the authorities referred to, with citations, in the order in which they appear in Part III or in alphabetical order; and

(f) Schedule B, with the caption “Relevant Legislative Provisions”, setting out the text of all relevant statutes, except where it would be more convenient to separately file an office consolidation from the Queen’s Printer for Ontario. O. Reg. 721/94, s. 14 (3).

(a) Part I, with the caption “Respondent’s Statement as to Facts”, containing a statement of the facts in Part II of the appellant’s factum that the respondent accepts as correct or substantially correct and those facts with which the respondent disagrees, and a concise summary of any additional facts relied on, with such reference to the evidence by page and line as is necessary;

(b) Part II, with the caption “Response to Appellant’s Issues”, containing the position of the respondent with respect to each issue raised by the appellant, immediately followed by a concise statement of the law and the authorities relating to that issue;

(c) Part III, with the caption “Additional Issues”, containing a statement of any additional issues raised by the respondent, immediately followed by a concise statement of the law and the authorities relating to that issue;

(d) Part IV, with the caption “Order Requested”, containing a statement of the order that the court will be asked to make;

(e) Schedule A, with the caption “Authorities to be Cited”, containing a list of the authorities referred to, with citations, in the order in which they appear in Parts II and III or in alphabetical order; and

(f) Schedule B, with the caption “Relevant Legislative Provisions”, setting out the text of all relevant statutes, except where it would be more convenient to separately file an office consolidation from the Queen’s Printer for Ontario. O. Reg. 721/94, s. 14 (4).

(6) The appellant’s factum shall be bound front and back in blue cover stock, and the respondent’s factum shall be bound front and back in green cover stock. O. Reg. 721/94, s. 14 (6).

(7) The factum shall be printed on good quality white paper 216 millimetres by 279 millimetres in size and the text shall be printed, typewritten, written or reproduced legibly on one side only with double spaces between the lines, except for quotations which may be single spaced, and margins of approximately 40 millimetres on the left-hand side. O. Reg. 721/94, s. 14 (7).

(8) The characters used shall be of at least 12 point or 10 pitch size. O. Reg. 721/94, s. 14 (8).

(5) In cases of unusual difficulty the panel hearing the appeal may enlarge these time limits as required. O. Reg. 721/94, s. 15 (5).

PERFECTING THE APPEAL

Service and filing

16. (1) Except in an inmate appeal, the appellant shall serve on every other party to the appeal and any person entitled by statute or an order of the court to be heard upon the appeal, one copy of an appeal book, one copy of the transcript and one copy of the appellant’s factum and immediately thereafter shall file with the Registrar proof of service of the appeal book, the transcript and the factum, and,

(a) in appeals directed to be heard by five judges, five copies of the appeal book and six copies of the appellant’s factum; and

(b) in all other appeals, three copies of the appeal book and four copies of the appellant’s factum. O. Reg. 721/94, s. 16 (1).

Certificate of perfection

(2) The appellant shall file with the Registrar two copies of a certificate of perfection stating,

(a) that the appeal book, transcript and appellant’s factum have been served and filed;

(b) that the transcript is complete;

(c) the estimated total length of time for oral argument; and

(d) the name, address and telephone number of the solicitor for each party to the appeal unless the respondent is the Attorney General, and of any person entitled by statute or an order to be heard on the appeal, or where a party or person acts in person, his or her name, address for service and telephone number. O. Reg. 721/94, s. 16 (2).

Time for perfection

(3) The appellant shall perfect the appeal by complying with subrules (1) and (2),

(a) where no transcript of evidence other than that filed in the appeal court is required for the appeal, within 60 days after filing the notice of appeal or such longer period as is permitted by a judge or the Registrar;

(b) where a transcript of evidence is required for the appeal, within 30 days after the transcript has been delivered to the Court of Appeal or such longer period as is permitted by a judge or the Registrar; or

(c) where an agreed statement of facts is required pursuant to subrule 8 (7), within 60 days after the transcript has been delivered to the Court of Appeal or such longer period as is permitted by a judge or the Registrar. O. Reg. 721/94, s. 16 (3).

MOTION FOR DIRECTIONS

17.The Registrar or any party to the appeal may, on notice, make a motion to a judge for directions in respect of the conduct of the appeal. O. Reg. 721/94, r. 17.

FAILURE TO PERFECT APPEAL

Notice of failure to perfect

18. (1) Where an appellant has not perfected an appeal within the time limits set out in rule 16, the Registrar may serve notice on the appellant and counsel for the appellant that the appeal shall be placed before the Court of Appeal to be dismissed as an abandoned appeal unless the appeal is perfected within 10 days after the service of the notice. O. Reg. 721/94, s. 18 (1).

Notice of intent to have appeal dismissed

(2) Where an appellant has not perfected an appeal within the time limits set out in rule 16, the respondent, on notice to the appellant and counsel for the appellant, may request the Registrar to have the appeal placed before the Court of Appeal to be dealt with in accordance with subrule (1), or may move before a judge for directions. O. Reg. 721/94, s. 18 (2).

Powers of Court

(3) Inconsidering an appeal referred to it under subrule (1), the Court of Appeal may,

(a) dismiss the appeal as an abandoned appeal;

(b) if the appellant was granted release from custody pending the appeal, revoke the release order and direct that a warrant issue for the arrest of the appellant;

(c) permit the appeal to remain on the list of pending appeals upon such conditions, if any, as the court considers fit, including conditions respecting the time limits for filing the transcript, the appeal book and the factum. O. Reg. 721/94, s. 18 (3).

Service of copy of order dismissing appeal

(4) The Registrar shall serve the appellant and the appellant’s counsel with a copy of any order or direction made or given under subrule (3). O. Reg. 721/94, s. 18 (4).

Manner of service

(5) Unless a judge otherwise orders, service of a notice on the appellant and counsel under this rule shall be by prepaid registered mail to the addresses as set out in the notice of appeal or as filed with the Registrar. O. Reg. 721/94, s. 18 (5).

LISTING APPEALS

Notice of date of appeal

19. (1) Subjectto the direction of the Chief Justice of Ontario, the Associate Chief Justice of Ontario or a direction given by a judge as a term of an order made by him or her relating to the conduct of the appeal, the Registrar shall fix the day of the hearing of the appeal and notify counsel, or the party, as the case requires. O. Reg. 721/94, s. 19 (1).

Date not to be fixed until appeal perfected

(2) Unless ordered by a judge or the Registrar, an appeal shall be listed for hearing only after being perfected in compliance with rule 16. O. Reg. 721/94, s. 19 (2).

Date for filing respondent’s factum

(3) The respondent’s factum shall be served and filed not later than 10 days before the week in which the appeal is to be heard. O. Reg. 721/94, s. 19 (3).

Appeals may be scheduled in afternoon

(4) In scheduling appeals, the Registrar may, where appropriate, prepare separate lists for the morning and for the afternoon. O. Reg. 721/94, s. 19 (4).

Duty on appellant to perfect appeal and obtain date

(5) Where the appellant has been granted release from custody pending appeal, the appellant or counsel on his or her behalf shall take all practicable steps to obtain a date for the hearing of the appeal which precedes the date on which the appellant is required to surrender into custody. O. Reg. 721/94, s. 19 (5).

BOOKS OF AUTHORITIES

Filing books of authorities

20. (1) Books of authorities shall be filed no later than Thursday in the week before the week in which the appeal is scheduled to be heard. O. Reg. 721/94, s. 20 (1).

Only authorities to be referred to included

(2) The book of authorities shall contain only those authorities intended to be referred to in oral argument. O. Reg. 721/94, s. 20 (2).

Marking of authorities

(3) The authorities shall be marked to indicate those passages intended to be referred to in oral argument. O. Reg. 721/94, s. 20 (3).

(5) A party shall not duplicate authorities already filed with the court by another party. O. Reg. 721/94, s. 20 (5).

Colour of cover

(6) The book of authorities shall be bound front and back in coloured stock of the same colour as the party’s factum. O. Reg. 721/94, s. 20 (6).

INTERVENTION

21. (1) Any person interested in an appeal between other parties may by leave of the Court of Appeal, the Chief Justice of Ontario or the Associate Chief Justice of Ontario, intervene in the appeal upon such terms and conditions and with such rights and privileges as the court, the Chief Justice or the Associate Chief Justice determines. O. Reg. 721/94, s. 21 (1).

(2) Thefactum of the intervener shall be bound front and back in white coloured stock. O. Reg. 721/94, r. 21.

APPEALS IN WRITING (NON-INMATE)

Appellant to file appeal books, transcripts and written argument

22. (1) Where an appellant in an appeal that is not an inmate appeal indicates to the Court of Appeal that he or she desires to present the case on appeal and the argument in writing, the appellant shall file an appeal book, transcripts of evidence, if any, and all other material, except a factum, that would be required if the appeal were to be heard with oral argument, and file the written argument within 30 days after the material has been filed. O. Reg. 721/94, s. 22 (1).

Material to be considered initially by single judge

(2) The material in the appeal shall be considered by a judge, who may give directions as to whether the respondent should be requested to file written argument and prescribe the times for doing so and for the filing of any reply in writing by the appellant. O. Reg. 721/94, s. 22 (2).

Procedure where judge considers appeal should be dismissed

(3) If the judge considers that no written argument from the respondent is required, the judge shall prepare draft written reasons for dismissing the appeal, and the file shall then be referred to two members of the criminal panel. O. Reg. 721/94, s. 22 (3).

(4) If the two members of the criminal panel agree with the judge and sign the reasons for dismissal, the appeal shall be dismissed and the reasons for dismissal shall be dealt with as if the reasons were a reserved judgment. O. Reg. 721/94, s. 22 (4).

Procedure where criminal panel requires argument from respondent

(5) If one of the two members of the criminal panel considers that written submissions should be required from the respondent, directions in that respect shall be given in accordance with the provisions of subrule (2). O. Reg. 721/94, s. 22 (5).

(6) Where submissions have been required from the respondent, a copy of the submissions shall be transmitted to the appellant together with a notification that he or she may make written submissions in reply within 14 days after receipt of the submissions of the respondent. O. Reg. 721/94, s. 22 (6).

(7) When the appellant’s submissions in reply have been received, or the time for submitting them has expired, the appeal shall be referred for disposition to a criminal panel, which shall give written reasons for judgment, which shall be dealt with as if the reasons were a reserved judgment. O. Reg. 721/94, s. 22 (7).

Criminal panel may require oral submissions

(8) Despite subrule (7), the criminal panel considering the appeal under that subrule may direct that the appeal be listed for hearing and give notice to the appellant that he or she may attend and make oral submissions. O. Reg. 721/94, s. 22 (8).

Service

(9) Unless a judge otherwise orders, service of a notice on the appellant under this rule shall be by ordinary mail to the address as set out in the notice of appeal or as filed with the Registrar. O. Reg. 721/94, s. 22 (9).

INMATE APPEALS—NOTICE OF APPEAL AND APPEAL BOOKS

Superintendent to provide inmate notice of appeal

23. (1) The senior official of a penal or reform institution shall supply to any inmate in his or her custody, upon request, a form of notice of motion in Form 2 and a form of notice of appeal in Form 3. O. Reg. 721/94, s. 23 (1).

Superintendent to transmit documents

(2) The senior official shall forthwith transmit to the Registrar any notice of motion and notice of appeal served upon him or her, and shall forthwith deliver to the inmate concerned any documents that may be transmitted to the inmate by the Registrar, and shall inform the Registrar of having done so. O. Reg. 721/94, s. 23 (2).

Preparation of appeal book by Attorney General or prosecutor

(3) Where an inmate appeal is directed to be listed for hearing, the Registrar shall request the Attorney General or counsel for the prosecutor to prepare appeal books for the use of the court and the appellant which shall contain,

(a) a table of contents;

(b) the notice of appeal;

(c) the information or certificate;

(d) all exhibits capable of reproduction;

(e) the order granting leave to appeal;

(f) where the appeal is or includes an appeal against sentence, the pre-sentence report, if any, and the record of the defendant, if any;

(g) the transcript of the reasons for judgment in respect of conviction and sentence; and

(4) The Registrar may, in writing, in an appropriate case, excuse the Attorney General from complying with the requirements of subrule (3), or any of them. O. Reg. 721/94, s. 23 (4).

Attorney General to provide copies of appeal books

(5) The Attorney General shall mail one copy of the appeal book to the appellant and file three copies of the appeal book with the Registrar. O. Reg. 721/94, s. 23 (5).

INMATE APPEALS—EXTENSION OF TIME

24.If the notice of appeal in Form 3 is not served within the time limited by rule 5, the appellant shall set out in the place provided therefor in Form 3 the grounds for seeking an extension of time. O. Reg. 721/94, r. 24.

INMATE APPEALS—PRESENCE OF APPELLANT

25. (1) Where the appellant in an inmate appeal has indicated in the notice of appeal that he or she desires to present the appeal in person and the notice of appeal was served within the time limited by rule 5, or an extension of time has been granted, the appeal shall be listed for hearing. O. Reg. 721/94, s. 25 (1).

(2) Despite subrule (1), an appellant in an inmate appeal who has indicated that he or she desires to present the appeal in person may request that his or her appeal be dealt with as an appeal in writing, and thereupon a judge may direct that the appeal proceed in accordance with rule 26. O. Reg. 721/94, s. 25 (2).

INMATE APPEALS—APPEALS IN WRITING

Inmate to be given appeal book and time to prepare argument

26. (1) Where the appellant in an inmate appeal has indicated in the notice of appeal that he or she desires to present the case on appeal and argument in writing and the notice of appeal was served within the time limited by rule 5 or an extension of time has been granted, the Registrar shall notify the appellant that he or she has the right to present further written submissions within 14 days after receipt of the appeal book, unless this has already been done in connection with an application for extension of time for appeal. O. Reg. 721/94, s. 26 (1).

Appeal to be considered initially by single judge

(2) The appeal shall be considered by a judge. O. Reg. 721/94, s. 26 (2).

(3) If the judge considers that the appeal has sufficient merit to require argument from the respondent, the judge shall so endorse the file, whereupon the Registrar shall transmit to the respondent copies of the notice of appeal, the written submissions of the appellant, if not included in the notice of appeal, together with notification that the submissions of the respondent in answer to the appeal should be made in writing within 20 days of the receipt of the material from the Registrar and that four copies thereof be filed with the Registrar. O. Reg. 721/94, s. 26 (3).

Procedure where judge considers appeal should be dismissed

(4) If the judge considers that the appeal does not have sufficient merit to require argument from the respondent, the judge shall write draft reasons for judgment dismissing the appeal and refer the appeal with the reasons to two members of the criminal panel. O. Reg. 721/94, s. 26 (4).

(5) If the two members of the criminal panel agree with the judge and sign the reasons for judgment, the appeal shall be dismissed and the reasons for dismissal dealt with as if the reasons were a reserved judgment. O. Reg. 721/94, s. 26 (5).

Procedure where criminal panel requires argument from prosecutor

(6) If one of the two members of the criminal panel considers that written submissions should be required from the respondent, the provisions of subrule (3) where argument is required from the respondent apply. O. Reg. 721/94, s. 26 (6).

(7) Where submissions have been required from the respondent, a copy of them shall be transmitted to the appellant by the Registrar together with a notification that he or she may make written submissions in reply within 14 days of receipt of the submissions of the respondent. O. Reg. 721/94, s. 26 (7).

(8) When the appellant’s submissions in reply have been received, or the time for submitting them has expired, the appeal shall be referred for disposition to the criminal panel, which shall give written reasons for judgment, to be dealt with as if the reasons were a reserved judgment. O. Reg. 721/94, s. 26 (8).

Criminal panel may require oral submissions

(9) Despite subrule (8), the criminal panel considering the appeal under that subrule may direct that the appeal be listed for hearing and, in that event, may request the Attorney General to arrange for the attendance of the appellant at the hearing. O. Reg. 721/94, s. 26 (9).

REASONS FOR JUDGMENT

27. (1) In every appeal, the Registrar shall notify the trial judge and the judge of the appeal court of the result of the appeal and where reasons are given in writing or given orally and later reduced to writing, the Registrar shall send a copy of the reasons,

(a) in an inmate appeal or an appeal where the appellant was not represented by counsel, to the appellant;

(b) in an appeal conducted by a solicitor, to the solicitor for the appellant;

(c) to the trial judge and the judge whose order is the subject of the appeal;

(d) to the Attorney General;

(e) to the solicitor for the respondent and any person granted intervener status or to the respondent and the intervener, where not represented by counsel;

(f) in an appeal from the Ontario Court (General Division), to the Chief Justice of the Ontario Court and the regional senior judge of the region where the trial was conducted;

(g) in an appeal from the Ontario Court (Provincial Division), to the Chief Judge of the Ontario Court (Provincial Division) and the regional senior judge of the region where the trial was conducted. O. Reg. 721/94, s. 27 (1).

(2) Wherereasons in writing or oral reasons reduced to writing are not given, the Registrar shall notify the trial judge or the judge whose order was the subject of the appeal of the result of the appeal. O. Reg. 721/94, s. 27 (2).

ABANDONMENT OF APPEALS

Service of notice of abandonment

28. (1) Where an appellant desires to abandon the appeal, the appellant shall serve in the manner provided by subrule 3 (6) a notice of abandonment signed by the solicitor of record in the appeal, or by the appellant, in which case the signature shall be verified by affidavit or witnessed by a solicitor or an officer of the institution in which the appellant is confined. O. Reg. 721/94, s. 28 (1).

Single judge may dismiss appeal

(2) A judge may thereupon dismiss the appeal as an abandoned appeal, without the attendance of counsel. O. Reg. 721/94, s. 28 (2).

Court reporter to be notified

(3) Where an appeal has been abandoned, the appellant shall forthwith notify the court reporter in writing. O. Reg. 721/94, s. 28 (3).

RELEASE FROM CUSTODY PENDING APPEAL—CONTENTS OF AFFIDAVIT

Contents of applicant’s affidavit

29. (1) Upon an application for release from custody pending appeal, the appellant shall file an affidavit or affidavits, including where practicable the appellant’s own affidavit, establishing,

(a) the particulars respecting the conviction;

(b) the judicial interim release status of the appellant pending the appeal from the trial decision;

(c) the appellant’s places of residence in the three years preceding the conviction, and where the appellant proposes to reside if released;

(d) the appellant’s employment prior to conviction, and whether the appellant expects to be employed if released and where;

(e) the appellant’s criminal record, if any;

(f) where the appellant proposes entering into a recognizance with sureties, the amount of money or value of other valuable security the appellant proposes should be deposited, and where practicable, the names of the sureties and the amount for which each is to be liable. O. Reg. 721/94, s. 29 (1).

Respondent may file affidavit

(2) Where the respondent desires to assert that the detention of the appellant is necessary and to rely on material other than that contained in the material filed by the appellant, the respondent shall file an affidavit setting out the facts upon which the respondent relies. O. Reg. 721/94, s. 29 (2).

Parties may cross-examine on affidavits

(3) The appellant and the respondent may cross-examine upon affidavits filed by the opposite party, in accordance with the Rules of Civil Procedure. O. Reg. 721/94, s. 29 (3).

Judge may dispense with compliance

(4) A judge may dispense with the filing of the affidavits referred to in subrules (1) and (2) and act upon a statement of facts agreed upon by counsel for the appellant and the prosecutor. O. Reg. 721/94, s. 29 (4).

“criminal record” includes any record of convictions under the same statute as the conviction sought to be appealed. O. Reg. 721/94, s. 29 (5).

CONDITIONS OF RELEASE

30.Unless otherwise ordered by the judge hearing the application, all orders for release from custody pending appeal shall contain the conditions,

(a) that the appellant will surrender into custody at the institution from which he or she is released, or such other institution as may be specified in the order, by 6 p.m. on the day prior to the hearing of the appeal or such other date as may be specified in the order;

(b) that the appellant shall advise the Registrar of his or her place of residence. O. Reg. 721/94, r. 30.

VARIATION OF BAIL

Judge may vary order

31. (1) A judge may, on cause being shown, cancel an order previously made under section 132 of the Act and may make any order that could have been made under that section. O. Reg. 721/94, s. 31 (1).

Order may be made without attendance of counsel

(2) An order for a new recognizance or undertaking varying a term may be made by a judge without the attendance of counsel, if the written consent of counsel for the respondent has been filed. O. Reg. 721/94, s. 31 (2).

Content of material to be filed

(3) Where the appellant seeks an order under subrule (2) varying a term referred to in clause 30 (a), the material filed in support of the application shall contain a summary of the status of the appeal, an explanation for any failure to comply with rule 8 or 16 and, where applicable, a statement of the earliest feasible date on which the appeal may be heard. O. Reg. 721/94, s. 31 (3).

NOTICE

32.An application referred to in rules 29 and 31 shall be on two clear days notice unless the respondent consents to, and a judge or the Registrar permits, a shorter period of notice. O. Reg. 721/94, r. 32.

“preceding rules” means the Rules of the Court of Appeal in Appeals under the Provincial Offences Act (Regulation 195 of the Revised Regulations of Ontario, 1990) as they existed on the day before these rules come into force. O. Reg. 721/94, s. 33 (1).

(2) These rules apply to all appeals, whether commenced before or after these rules come into force, except in respect of steps already taken under the preceding rules. O. Reg. 721/94, s. 33 (2).

(3) Despite the repeal of the preceding rules and subrule (2), a judge may make an order that an appeal, or a step in the appeal, be conducted under these rules or the preceding rules or make any other order that is considered just in order to secure the fair and expeditious conduct of the appeal. O. Reg. 721/94, s. 33 (3).

34. Omitted (revokes other Regulations and provides for coming into force of provisions of this Regulation). O. Reg. 721/94, r. 34.